State v. Bradley

• Citation: 179 S.W.2d 98,352 Mo. 780
• Decision Date: 03 April 1944
• Docket Number: 38845
• Parties: State v. William Bradley, Appellant
• Court: United States State Supreme Court of Missouri

179 S.W.2d 98

352 Mo. 780

State v. William Bradley, Appellant

No. 38845

Supreme Court of Missouri

April 3, 1944

Appeal from Circuit Court of St. Louis County; Hon. Julius R Nolte, Judge.

Reversed and remanded.

Frank E. Mathews for appellant.

(1) The admissibility of statements made to a witness over the telephone depends upon the identification of the speaker, and where such identification rests solely upon the word of the caller, such statements are hearsay, and not admissible. State v. Berezuk, 55 S.W.2d 949; State v McGee, 83 S.W.2d 98. (2) It is error to admit in evidence any exhibit which sheds no light on any disputed fact, and which is likely to stir the emotions and inflame the minds of the jurors against the defendant. State v Long, 80 S.W.2d 154; State v. Porter, 276 Mo. 387, 207 S.W. 774; State v. Hamilton, 102 S.W.2d 642; State v. McDaniel, 80 S.W.2d 185; State v. Shawley, 334 Mo. 352, 67 S.W.2d 74. (3) The evidence in this case fully warranted an instruction on manslaughter through culpable negligence, and the court's failure to give such instruction, although not requested to do so, constituted reversible error. State v. Morrison, 104 Mo. 638, 16 S.W. 492; State v. Emery, 78 Mo. 77; State v. Markel, 77 S.W.2d 112; State v. Baublits, 27 S.W.2d 16; Sec. 4070, R.S. 1939; State v. Burrell, 298 Mo. 672, 252 S.W. 709. (4) The court committed error in giving and reading to the jury, over the objection of appellant, Instruction 10, for the reason that said instruction, in effect, told the jury that they could not acquit appellant, even though he accidentally shot deceased, if they believed that the gun was discharged through the fault or simple negligence of appellant. Ordinary or simple negligence will not render one criminally liable. State v. Millin, 300 S.W. 694; State v. Melton, 33 S.W.2d 894; State v. Baublits, 27 S.W.2d 16. (5) An accidental shooting unattended by culpable negligence will not render one criminally liable. State v. Bartley, 84 S.W.2d 637; State v. Baublits, 27 S.W.2d 16. (6) The giving of Instruction 10 was prejudicial error notwithstanding the fact that appellant was convicted of murder in the second degree. State v. Crowley, 139 S.W.2d 473; State v. Buckner, 72 S.W.2d 73; State v. Little, 228 Mo. 273, 128 S.W. 97. (7) The court committed error in giving and reading to the jury, over the objection of appellant, Instruction 12, for the reason that said instruction authorized the jury to disregard, rather than weigh and reject, all or any part of the testimony of any witness whom the jury believed willfully swore falsely to any material fact or facts in the case. The jury must consider all of the evidence and may not properly disregard any part thereof. State v. Willard, 142 S.W.2d 1046. (8) Evidence of defendant's good character, where the charge is murder in the first degree, should be considered by the jury in determining his guilt or innocence of all lesser degrees of homicide indicated by the evidence, as well as his guilt or innocence of the crime charged. State v. Taylor, 238 S.W. 489; State v. Robinson, 130 S.W.2d 530. (9) It is prejudicial error for the attorney for the State to express his personal opinion, not based upon the evidence, as to the defendant's guilt. State v. Taylor, 51 S.W.2d 1003; State v. Cole, 252 S.W. 698.

Roy McKittrick, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.

(1) The court did not err in permitting the witness, Charles Goss, to testify to threats against the deceased made by the appellant to the witness over the telephone. Meyers Milling Co. v. Strofield, 20 S.W.2d 963; State v. Berezuk, 331 Mo. 628, 55 S.W. l.c. 949; State v. McGee, 326 Mo. 1082, 83 S.W.2d 98. (2) The court did not err in admitting over the objections of the appellant, respondent's Exhibit C. State v. Hamilton, 102 S.W. 642; State v. Lewis, 137 S.W.2d 465; State v. Long, 80 S.W.2d 154; State v. Shawley, 67 S.W.2d 74. (3) The court did not err in giving Instruction 6. State v. Ball, 133 S.W.2d 414; State v. Bell, 136 Mo. 120; State v. Bradford, 24 S.W.2d 993; State v. Brown, 62 S.W.2d 426; State v. Cade, 34 S.W.2d 82; State v. Cole, 252 S.W. 698; State v. Crouch, 124 S.W.2d 1185; State v. Dunn, 80 Mo. 681; State v. Foran, 255 Mo. 213; State v. Fultz, 142 S.W.2d 39; State v. Gore, 292 Mo. 173; State v. Hicks, 3 S.W.2d 230; State v. Rowe, 24 S.W.2d 1032; State v. Ryland, 25 S.W.2d 109; State v. Snead, 259 Mo. 427; State v. Suddath, 55 S.W.2d 962; State v. Thompson, 92 S.W.2d 892. (4) The court did not err in giving Instruction 10. State v. Gaskin, 89 S.W.2d 647; State v. Smith, 16 S.W.2d 653; State v. Traylor, 98 S.W.2d 628; State v. Raines, 62 S.W.2d 727. (5) The court did not err in giving State's Instruction 12. State v. Clark, 111 S.W.2d 101; State v. Hamilton, 263 S.W.2d 127; State v. Oliver, 87 S.W.2d 644; State v. Ransom, 100 S.W.2d 298; State v. Tucker, 62 S.W.2d 453; State v. Willard, 142 S.W. 1046; State v. Wilkins, 100 S.W.2d 895. (6) The court did not err in giving Instruction 8 for the State. State v. Nienaber, 148 S.W.2d 1024; State v. Nienaber, 148 S.W.2d 537; State v. Pope, 92 S.W.2d 905; State v. Shafer, 108 S.W.2d 36; State v. Wissing, 187 Mo. 98. (7) The court did not err in its ruling on the argument of the prosecuting attorney. State v. Marshall, 297 S.W. 63; State v. Repley, 278 Mo. 343; State v. White, 253 S.W. 724.

Bohling, C. Westhues and Barrett, CC., dissent.

OPINION

BOHLING

A jury found William Bradley guilty of murder in the second degree in killing his wife, Mollie, and fixed his punishment at fifteen years' imprisonment.

Bradley's wife had left him twice and was prepared to leave again the morning she was killed. He had told her mother that if she left him again he would kill her. He had told her brother that if she left again he would get himself into serious trouble. She had admitted to her husband that she had been going out with a dining car waiter who had given her some luggage. On the trial of the case Bradley admitted killing his wife with a shotgun but claimed the shooting s783] was accidental. On this appeal he does not dispute that there was evidence from which the jury could find him guilty of murder in the second degree but contends that there was error in the submission of the case prejudicial to his being fairly tried.

The information charged and the court submitted to the jury whether the defendant was guilty of murder in the first degree, murder in the second degree or manslaughter. The court undertook to tell the jury to acquit the defendant if they found the killing to have been accidental. The defendant does not complain of the given manslaughter instruction but contends that the court should have instructed the jury on manslaughter through culpable negligence. His theory is that if the jury had been so instructed they might have found him guilty of manslaughter rather than of murder in the second degree.

Bradley and his wife were servants in the home of Mr. Charles Rice. They occupied the rooms on the third floor of his home. As a part of his duties he fed the birds in the morning and shot predatory birds. His version of the killing is that on the morning of March 8, 1942 he saw a hawk in a tree outside their third story living quarters and pursuant to his previous custom and instructions decided to shoot it. Mr. Jay Rice and his wife were in the dining room and he reported the presence of the hawk to them and asked Mr. Rice if he might use his gun. Mr. Rice told him to get his (Rice's) gun from the closet in his room. Instead his own twelve-gauge shotgun was in the hall next to the bathroom on the third floor and he went to the basement and obtained a shell he had left in a cabinet for his own gun. The sole of one of his shoes had come loose from the toe and bent back under his foot. He loaded his gun and as he walked across the floor stumbled forward five or six feet because of the defective sole and the gun struck or went inside the bathroom door and fired, killing his wife as she stood in front of the lavatory in the bathroom -- the door being open three or four inches. He was of the opinion that it was easier to shoot the hawk from the bathroom window rather than from the bedroom window or elsewhere. This was his version of the occurrence as he testified to it in his own defense. His testimony and the version he gave the officials differed in that to them the impression was given that the gun went off outside the bathroom door, without striking it, and the shot went through the three-inch space of the open door. Also, he first said he did not see his wife in the bathroom but later saw her just as the gun went off. The shot went through her left chest about two inches below the tip of her left shoulder, in a line with the front of her armpit, downward and backward to her spine.

The defendant's theory is that his evidence compelled the giving of an instruction on manslaughter through culpable negligence because if he intentionally shot his wife he did so with malice and premeditation and therefore, could not have been guilty of manslaughter in intentionally killing his wife without malice or premeditation, the distinguishing characteristic of manslaughter. State v. Pillow, 169 S.W.2d 414. The defendant says that the carrying of a loaded shotgun in the house, in haste, with his finger on the trigger and the safety off and wearing a defective shoe was evidence from which the jury could have found such a recklessness and carelessness on his part as was utterly incompatible with the safety of others, or manslaughter through culpable negligence. The difficulty with the defendant's position, the facts and prior instances upon which he relies, is that his own version of the occurrence does not...